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The cat is finally out of the bag. A California appellate court, ruling that parents have no constitutional right to homeschool their children, pinned its decision on this ominous quotation from a 47-year-old case, "A primary purpose of the educational system is to train schoolchildren in good citizenship, patriotism and loyalty to the state and the nation as a means of protecting the public welfare."

There you have it; a primary purpose of government schools is to train schoolchildren "in loyalty to the state." Somehow that protects "the public welfare" more than allowing parents to homeschool their children, even though homeschooled kids routinely outperform government-schooled kids academically. In 2006, homeschooled students had an average ACT composite score of 22.4. The national average was 21.1.

Justice H. Walter Croskey said, "California courts have held that under provisions in the Education Code, parents do not have a constitutional right to homeschool their children," Justice Croskey said.

If that is the law in California, then Charles Dickens's Mr. Bumble is right: "the law is a ass, a idiot."

The California Constitution says, "A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement."

That doesn't appear to rule out homeschooling, unless you read it as a grant of absolute power to politicians.

Admittedly, the education code is vague. It requires children to attend public school or a private school (where certified teachers are not required). But they can also be taught by state-credentialed tutors. Homeschooling is not directly addressed. There's disagreement over what that means. The court and the teachers' union claim homeschooling is illegal unless the teaching parent has state credentials.

Homeschooling parents, many of whom have declared their homes private schools, say what they do is legal. Up till now that's been fine with the California Department of Education. And California reportedly has 166,000 homeschoolers.

Nationwide, the National Center for Education Statistics says that in 2003 (the latest year for which it has a number), almost 1.1 million children were being homeschooled. The numbers keep increasing, so clearly homeschooling parents think their kids get something better at home than they would from public schools.

The Los Angeles Times isn't sure where the state law stands. "If no such right [to homeschool] exists, as a court ruled, the Legislature should make it an option," the newspaper's editorial board said. The editorial wondered why parents who teach one or two children at home need credentials, while private-school teachers in classes full of kids don't.

The danger in having the legislature clarify the law is that the legislature is controlled by politicians sympathetic to the teachers' union, which despises homeschooling. "[H]ome-schoolers fear that any attempt to protect home-schooling would end up outlawing it," writes Orange County Register columnist Steven Greenhut.

It reminds me of what New York Judge Gideon Tucker said in the Nineteenth Century, "No man's life, liberty, or property are safe while the legislature is in session."

This particular case is muddied by suspicions of child abuse, but as the Times said, the court improperly "used a single example of possible child abuse to throw the book at tens of thousands of home schoolers."

I think the state court is looking at the state Constitution upside down. The court finds no constitutional right to homeschool one's children. But in a free country, people are free to do anything not expressly prohibited by law. If the Constitution is silent about homeschooling, then the right is reserved to the people. That's how the Framers of the U.S. Constitution said things are supposed to work.

Last week, the appellate court surprised everyone by agreeing to rehear the case. The San Francisco Chronicle reports that the judges "hinted at a re-evaluation of its entire Feb. 28 ruling by inviting written arguments from state and local education officials and teachers' unions".

On top of that, state Schools Superintendent Jack O'Connell says he thinks homeschooling is legal and favors choice in education.

That's reasonable news. But why is education the business of government? It's taken for granted that the state is every child's ultimate parent, but there's no justification for that in a free society. Parents may not be perfect  some are pretty bad  but a cold, faceless bureaucracy is no better.

Let's hope the court gets it right in June.

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